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Clifford v. Trump

IP/Entertainment Case Law Updates October 15, 2018

District court dismisses defamation claim filed by adult film actress Stephanie Clifford (aka Stormy Daniels) against President Donald Trump, holding that tweet was “rhetorical hyperbole” protected by First Amendment.

Plaintiff Stephanie Clifford, more commonly known by her stage name Stormy Daniels, filed a complaint against President Donald Trump, alleging that he defamed her by tweeting that her claims about their purported affair included a threat by a “nonexistent man” and were a “total con job.” Trump filed a special motion to dismiss/strike, contending that Clifford failed to state a claim for defamation and that the suit is a Strategic Lawsuit Against Public Participation (SLAPP).

As an initial matter, the court focused on which state’s substantive law should govern. Noting that the case had been transferred from New York, the court explained that New York’s choice-of-law principles should determine which forum’s substantive laws should apply. Under New York choice-of-law provisions, the substantive law of the situs of the injury is typically applied to tort lawsuits where the lawsuit is based on diversity jurisdiction. For multistate defamation actions, however, where the situs of injury may be in multiple jurisdictions, New York applies the law of the state with the most significant interest in the litigation — generally the plaintiff’s place of domicile. Because Clifford was a citizen of Texas, the court determined that Texas law, specifically the Texas Citizens Participation Act (TCPA) governed.

The TCPA, like analogous anti-SLAPP statutes in states such as California, seeks to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law, and at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Analysis of an anti-SLAPP motion under the TCPA proceeds in three steps: (1) defendant must show by a preponderance of the evidence that plaintiff’s complaint is based on, relates to or is in response to the defendant’s exercise of the right of free speech; (2) the burden then shifts to the plaintiff to establish by clear and specific evidence a prima facie case for each essential element of the claim in question; and (3) the defendant can still prevail under the TCPA if he or she “establishes by a preponderance of the evidence each essential element of a valid defense” to the plaintiff’s claim.

First, the court had no difficulty concluding that Clifford’s lawsuit related to Trump’s right of free speech on an issue of public concern. Next, the court held that Clifford failed to establish a prima facie case for defamation, which requires that she allege that (1) Trump published a false statement, (2) that statement defamed Clifford, (3) with the requisite degree of fault regarding the truth of the statement (negligence for private individuals and malice for public individuals) and (4) damages (unless the statement constitutes defamation per se).

With regard to the requirement of a false statement, the court held that the tweet is protected by the First Amendment as a nonactionable opinion, as it “constitutes ‘rhetorical hyperbole’ normally associated with politics and public discourse.” The court explained that statements on matters of public concern must be provable as false and must be reasonably interpreted as stating actual facts. The court explained that the incredulous tone of the tweet suggests that the content was not meant to be understood literally, and noted that if Trump were prevented by the judiciary from engaging in “rhetorical hyperbole” against a political adversary, it would “strongly hamper the office of the president.” Finally, the court explained that allowing Clifford to proceed with her defamation action would effectively permit her to make public allegations against the president without giving him the opportunity to respond, implicating First Amendment concerns.

The court granted Trump’s special motion to dismiss/strike on the grounds that the tweet was nonactionable and was protected as “rhetorical hyperbole” under the First Amendment. It also denied Clifford’s request for leave to amend, and held that Trump is entitled to reasonable attorneys’ fees under the mandatory fee-shifting provisions of the TCPA.